Barnett v. State

• Decision Date: 07 March 1922
• Docket Number: 17140
• Citation: 104 Ohio St. 298,135 N.E. 647
• Parties: Barnett v. The State Of Ohio
• Court: Ohio Supreme Court

135 N.E. 647

104 Ohio St. 298

Barnett v. The State Of Ohio

No. 17140

Supreme Court of Ohio

March 7, 1922

Criminal law - Sodomy - Evidence - Other similar acts of accused - Admissible for identification purposes, when - Charge to jury -Limiting scope of evidence.

1. In a trial upon an indictment charging sodomy with a little girl six years of age, evidence of other like assaults upon other little girls, at or near the time charged in the indictment is admissible to prove the habitual moral degeneracy and sexual perversion of the person committing such offenses and his criminal course of lascivious conduct, all for the purpose of identifying the defendant as the sexual pervert who committed the crime charged in the indictment.

2. The trial court at the time of the introduction of such evidence or in its general charge, should limit the application of such evidence by the jury to such purpose.

The facts are stated in the opinion.

Mr John P. Manton; Mr. George C. Bryce and Mr. Warren J. Duffey for plaintiff in error.

Mr. Roy R. Stuart, prosecuting attorney, and Mr. Harry S. Commager, assistant prosecuting attorney, for defendant in error.

WANAMAKER J.

The judgment below is affirmed upon the very able opinion of Richards, J., of the court of appeals, which contains a very plain, orderly, and well-reasoned statement of the questions of law in this case, as follows:

"The plaintiff in error, David A. Barnett, was indicted for the crime of sodomy committed on the person of a little girl six and a half years of age, and was tried and convicted.

"Many errors are claimed to have been committed at the trial and on the hearing of a motion for a new trial, which it is insisted require a reversal of the judgment. There are, however, but two of these assignments of error that require special discussion by the court, and these are, first, in admitting, for the purpose of identifying the defendant, the testimony of certain children of tender years, showing other similar conduct, and, second, the weight of the evidence, particularly relating to the defence of alibi on which the defendant relied. These are the two important, outstanding questions on which this case must be decided.

The evidence introduced on behalf of the state tended to show that on December 1, 1920, the little girl who is the prosecuting witness, was on her way home from school in the city of Toledo, shortly after 10:45 o'clock a. m., and that she was accosted by a man in an automoblle who asked her if she did not want to take a ride. On his insistence she got into the machine and was driven into an unfrequented place in the suburbs of the city where the crime of sodomy was committed, in the automobile, against the will of the child. He thereupon drove back into the vicinity of her home and she got out and walked home, arriving there about twenty minutes before twelve o'clock noon.

"The testimony of this child positively identifies the defendant with as much certainty as could be expected of a child of her age, as the man who committed the crime. On the trial of the case it was admitted that the crime had been, in fact, committed, but denied that the defendant was the guilty person. The question, therefore, of the identity of the defendant became one of vital importance in the case and to substantiate that identity the state called and examined as witnesses six or eight little girls, varying in ages from six to ten years. The competency of the little girl who is the prosecuting witness, and of these other little girls who were called as witnesses by the state, is challenged by the defendant.

"Each of them was examined as to her competency before being permitted to testify and the record of that examination fairly discloses that they were capable of receiving just impressions of tile facts and transactions respecting which they were examined, and of relating them truly, and they appeared to understand the nature of an oath and the penalties for its violation. The examination of these young girls plainly indicates that they were competent witnesses. The trial judge, who saw the children and heard their testimony and passed on their competency, was in a far better position to judge of their competency than is this court, which only reads their testimony from the record, and that record certainly does not show any abuse of discretion on the part of the trial judge in holding them to be competent witnesses. 28 R.C.L. 463, 465.

"It is insisted that the trial court erred in admitting testimony from these children of other crimes of like character committed or attempted by the defendant on them and the question of the admissibility of this evidence has received the most careful consideration of this court. This class of testimony was admitted to go to the jury solely on the claim that it aided in identifying the defendant as the person who was guilty of the offense committed on the prosecuting witness. The trial judge clearly and explicitly stated to the jury more than once the reason for the admission of this evidence, and the only purpose for which it was competent. In so doing he used the following language:

"`The evidence is competent only as an identifying mark. If you find in this evidence some peculiarity by which you are able to distinguish this defendant from other men and to identify him as the doer of the wrong described by the prosecuting witness, this evidence is received for that purpose and that alone. You will not consider the facts that another offense may have been committed and judge the guilt or innocence of the defendant upon this indictment by those facts, but I will say to you for the third time, it is to be received only and you will use it only as a means of identification as a means by which through evidence the state may point out to you the person who did that which the prosecuting witness has described.'

"Unless the testimony is competent on the subject of identity it is clearly not competent for any purpose whatever. That testimony tends, to show that upon divers occasions shortly before and after the time of the offense charged in the indictment, a man identified as the defendant Barnett, invited each of them on a separate occasion, to ride with him alone in an automobile. This automobile was a one-seated roadster and the evidence discloses that the machine which the defendant habitually drove was a Dodge roadster having one seat.

"According to the testimony of these girls, the general, but not universal, practice was that they would be invited, at or near a schoolhouse, to ride, and on the trip the defendant would undertake his lecherous practices. Two of the girls failed to identify the defendant as the man who had invited them to ride. In the case of one of these little girls who failed to identify the defendant, the license number of the car in which she rode was taken by another witness and shown to be the number borne by the car usually driven by the defendant. The testimony of the girl who rode in the car on that occasion shows the same lecherous practices as testified to by the other children. Several little girls were called as witnesses who lived adjoining the residence of the defendant and were acquainted with him. Some of those girls testified to lascivious conduct on his part, not going to the extent of the commission of sodomy, but others of those children acquainted with him testify that there was no improper conduct on his part when they were riding with him. Is that class of evidence competent as tending to identify the defendant? Certainly it bore with heavy weight against the defendant, and, if incompetent, was highly prejudicial.

"Any physical characteristic has always been received in evidence as a valuable aid to the courts on questions of identity. The matter of identifying by means of finger-prints has been developed by the Bertillon system until it has become marvelously accurate. A drooping eyelid, a halting step, a peculiarity of speech, may all furnish important evidence on identity. The law will not suffer itself to be handicapped by limiting the means or methods of identification to physical characteristics. Where the identity of the defendant is the question in issue, any fact which tends to establish the identity has probative value and is none the less competent evidence because it establishes a collateral fact nor because proof of such fact may incidentally involve proof of the commission of another offense. If the fact tends to establish the identity of the accused, it is competent evidence, no matter what else it may prove, and facts of that character, when weighed with the other evidence may justify the bury in finding identity to be established beyond a reasonable doubt.

"No rule of criminal law is more firmly established than that, in general, evidence that the. defendant committed at another time an independent crime not charged in the indictment although of the same nature, does not in and of itself even tend to show that he is guilty of the...